I'm sick to death of hearing about Kim Davis. I'm sick to death of talking about Kim Davis. I'm sick to death of reading and writing about Kim Davis on the various blogs and message boards. This cruel and profoundly selfish wretch is not "exercising" her "religious" "freedom." She's requiring everyone who comes into her office to practice her religion and live their lives according to her faith. She's made her personal beliefs the Official State Religion of Rowan County, Kentucky.
That's not "freedom." That's power. She thinks she should be allowed to exercise power over others, mess with people's lives and get away with it, because a figment of her imagination told her to. She's despicable. Her supporters who fail to recognize what she's doing, because doing so would undermine their grotesque persecution fantasies, are despicable as well, and the politicians who pander to them are the most despicable of all.
Phew. Now that I've gotten that rant out of the way, I'd like to discuss something about the Kim Davis case that's getting lost in all the hyperbole about "religious freedom" and "do your job or quit" and all the various Marcia, Marcia, Marcia! talking points about immigration laws and sanctuary cities and Lois Lerner.
The real issue underlying the Kim Davis matter is not really religious freedom or LGBT rights; it's something I don't hear anyone talking about: separation of powers. More below the Orange Glyph of Liberal Intolerance.
A lot of people seem to think that Kim Davis was sent to jail for violating the Supreme Court's decision in Obergefell, a decision she not only disagrees with but that, we are told, is inherently illegitimate because the Court had no authority to make it. Even Fox News knows that's bunk; Article III section 2 of the Constitution grants the Supreme Court and lower federal courts jurisdiction over all cases and disputes "arising under this Constitution," which includes the 14th Amendment, which places limits on state law, which includes eligibility requirements for civil marriage. But the talking point among the Persecuted Conservative Christians is that Kim Davis "broke no laws" in refusing to issue marriage licenses in Rowan County.
Of course Kim Davis did break the law, but the law she broke was not Obergefell. Setting aside for the moment the issue of whether she can exempt herself from her duties by claiming that the law violates her "religious" "conscience," let's look at how this whole system of tripartite government we have here actually works.
Civil marriage in the United States -- specifically, eligibility requirements for a marriage license -- is entirely and exclusively a creature of state law. State legislatures, by statute, set forth the qualifications for a civil marriage license, and designate an administrative functionary to process and issue licenses to qualified couples. Administrative functionaries, such as county clerks, are typically part of the executive branch.
It is axiomatic that executive branch officials have only those powers expressly granted to them by the legislature. The legislature can, of course, grant discretionary authority to public officials or agencies tasked with enforcing certain laws; practically every federal statute -- including immigration (Justice/INS) and tax laws (Treasury/IRS), and for that matter the Affordable Care Act (HHS) -- does that. But if the statute directs a specific public official to perform a specific task under specific circumstances, and does not grant that official any discretionary authority, that official cannot decide for him or herself whether or how he or she will carry out his or her duties under those circumstances.
So, the statutory scheme in Kentucky is that couples who are of age, who consent, who are not closely related by blood and who are not already married to third parties, are legally eligible for a civil marriage license (Obergefell nullified the previous statutory requirement that the parties be of opposite gender; more on that presently). Under Kentucky law, couples who are eligible to marry and want a marriage license must go to the county clerk to get it; the clerk "shall issue" the license (KRS 402.080 (emphasis added)). No part of KRS Chapter 402, or any other Kentucky statute, grants the county clerk any discretion to refuse to issue a license to a couple that is legally eligible, let alone to substitute her own idea as to who should or should not be eligible to marry in place of the statutory qualifications.
Moreover, the Kentucky statutes do not grant anyone else the authority to issue the licenses, except "in the absence of the county clerk, or during a vacancy in the office", in which case the county judge/executive "may issue the license." (KRS 402.240). The word "absence" here is a legal term of art; suffice it to say, mere refusal by the clerk to issue the license does not qualify as "absence," nor would any exemption or accommodation by which the clerk herself could lawfully shirk her duties while remaining in office. So, again setting religion aside for the moment, what we have here is an executive-branch official exercising discretion that the legislature did not grant her.
Davis has argued that when she took the job of county clerk, same-sex marriage was still illegal in Kentucky, so she didn't expect to have to "violate her conscience" by issuing licenses to same-sex couples. The change in the law caused her to change the way she did her job. Laying aside the irrelevance of her expectations, the Obergefell decision had no effect whatsoever on her statutory obligation to issue marriage licenses to eligible couples. All it did was expand the scope of eligibility, which as an administrative functionary is none of her concern.
As noted above, state legislatures (in this case, the Kentucky General Assembly) establish the qualifications for civil marriage by statute. Under the 14th Amendment and Article III section 2, state statutes are subject to federal judicial review. If the Supreme Court holds that state statutes are unconstitutional, those statutes become null and void, inoperative and unenforceable, and are usually taken off the books or revised by the legislature subsequent to the judicial ruling. The Kentucky General Assembly has not done that yet; I understand they don't meet again until next year. The point, though, is that eligibility for civil marriage in any state is the purview of the legislature, and the judiciary. Not only may Kim Davis not exercise discretion that the legislature has not given her, she may not, as an executive branch official, usurp the legislative and judicial prerogative to determine who is eligible for a marriage license and who is not.
The separation of powers also makes it problematic for the state to implement any of the accommodations that her lawyer has asked for, most if not all of which would be illegal under Kentucky law and/or beyond the powers of the courts or the governor. Any accommodation would have to first guarantee that the citizens of Kentucky can get the marriage licenses to which they are legally entitled, in their home counties. Neither the governor nor a court can grant a public official any power or authority that the legislature has not expressly granted to that official. That not only means that the governor or a court can't simply give her the discretion to refuse; it also means that neither the governor nor a court can authorize anyone else to issue the licenses, let alone do so if she is not legally "absent." Nor can the governor or a court simply declare her legally "absent" if she isn't.
So, under the current statutory scheme, and taking into consideration the separation of powers -- which no one seems willing or able to do -- there really is no way the governor or the courts can accommodate Davis without interfering with the rights of her constituents, the public she is sworn and paid to serve, to obtain marriage licenses from her office. (For those who ask, "Why don't they just go to another county?", it should be noted that the law does not place the burden on private citizens to accommodate obstinate public officials, let alone do so at their own expense.) Whether the marriage license form can be changed to omit her name depends on whether the contents of the form and the placement of her name thereon are set forth by statute or by administrative regulation; if it's the former, then no. She can't be given any accommodation that would require the governor or a judge to exceed his authority and usurp the legislature.
In the end, it's up to the Kentucky General Assembly to find a way to accommodate Davis and others like her without burdening the civil rights of citizens of the Commonwealth. I won't take time to discuss potential legislative fixes here, but the General Assembly should be careful to prioritize the rights of eligible couples to receive marriage licenses on request, in the county where they live. An express religious exemption for public officials might violate the Establishment Clause.
The question still remains, what to do in the meantime? Well, it seems clear that unless and until the legislature comes up with a solution, Davis must either do her job, let her deputies do it for her, wait for the General Assembly to act, and reconcile herself that her position as an administrative functionary does not allow her to indulge her personal "beliefs" at the expense of others; resign her position, if she can't do that; or, go back to jail for contempt. The law is the law, until it isn't. Unless and until the law changes, the law as it stands is operative. And the law as it stands does not allow her to substitute her judgment -- be it "religious" or otherwise -- for that of the legislature, or the courts.